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Capital Punishment Jurisprudence: A Critical Assessment of the Supreme Court of Uganda's Judgment in Attorney General v Susan Kigula and 417 Others

Published online by Cambridge University Press:  14 September 2011

Barrie Sander
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Abstract

The Ugandan Supreme Court's decision in Attorney General v Susan Kigula & 417 Others ended a ten year constitutional challenge against capital punishment. The attorney general was appealing the Constitutional Court's declarations that a mandatory death penalty and a delay on death row of more than three years violate Uganda's Constitution. The respondents cross-appealed the Constitutional Court's declarations that the death penalty is constitutional and that hanging is an appropriate and therefore constitutional method of execution. The Supreme Court dismissed both the appeals and cross-appeals. This article summarises the Supreme Court's findings and analyses the court's reasoning. It demonstrates that, while the court's reasoning is generally in line with the interpretations offered by international courts and human rights bodies, the court arguably missed an opportunity to take a bolder approach regarding the relationship between the death penalty and the prohibition on cruel, inhuman and degrading treatment, particularly in light of recent international trends.

Type
Research Article
Information
Journal of African Law , Volume 55 , Issue 2 , October 2011 , pp. 261 - 279
Copyright
Copyright © School of Oriental and African Studies 2011

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References

1 PH Imbert, director general of human rights of the Council of Europe, quoted in Krüger, HC “Protocol no 6 to the European Convention on Human Rights” in Council of Europe, Death Penalty, Beyond Abolition (2004, Council of Europe) 87 at 96Google Scholar.

2 Attorney General v Susan Kigula and 417 Others Supreme Court of Uganda, constitutional appeal no 3 of 2006, 21 January 2009.

3 Kigula, above at note 2 at 2.

4 Id at 10. Under the Ugandan Penal Code, eight offences carry death sentences: treason (sec 23); smuggling where the offender is armed with, uses or threatens to use a deadly weapon (sec 319(2)); detention with sexual intent, where a person having authority to detain or keep the victim in custody participates in or facilitates unlawful sexual intercourse (sec 134(5)); murder (sec 189); kidnapping with intent to murder (sec 243); rape (sec 124); defilement (sec 129(1)); and aggravated robbery (sec 286(2)). Under the Anti-Terrorism Act 2002, the crimes of terrorism and related offences are also punishable by death (see secs 7(2) and 8).

5 Kigula, id at 12–20.

6 Id at 20–34.

7 Id at 20, 27 and 33–34.

8 Art 31 of the Vienna Convention on the Law of Treaties (23 May 1969), 1155 UNTS 331, provides that provisions of international treaties should be interpreted in their context.

9 Kigula, above at note 2 at 23.

10 Id at 12.

11 Id at 14.

12 Id at 16.

13 Id at 17.

14 Id at 18.

15 Ibid.

16 See id at 14–17.

17 Id at 14.

18 GA res 2200 (XXI), UN GAOR, 21st session, supp no 16, at 49: UN doc A/6316 (1966), art 6(1) (emphasis added). See also the American Convention on Human Rights (1978) 1144 UNTS 123, art 4(2) and the European Convention on Human Rights (1955) 213 UNTS 221, art 2. See also art 4 of the African Charter: OAU doc CAB/LEG/67/3 rev 5: 21 ILM 58 (1982): “Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right” (emphasis added). It is notable that, unlike other international human rights treaties, the African Charter is silent on the subject of the death penalty itself.

19 See Kigula, above at note 2 at 4.

20 Art 6(2): “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.” Art 6(4): “Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.” Art 6(5): “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.”

21 See Kigula, above at note 2 at 15.

22 See id at 16.

23 Human Rights Committee, comm no 469/1991, 5 November 1993 (Ng) at para 10.4, citing Canada's submissions. See also Joseph Kindler v Canada Human Rights Committee, comm no 470/1991, 30 July 1993 at para 15.1: “[a]s regards the author's claims that Canada violated article 7 of the Covenant, this provision must be read in the light of other provisions of the Covenant, including article 6, paragraph 2, which does not prohibit the imposition of the death penalty in certain limited circumstances. Accordingly, capital punishment as such, within the parameters of article 6, paragraph 2, does not per se violate article 7.”

24 ICCPR, art 6(6).

25 See State v T Makwanyane and M Mchunu, case no CCT/3/94, 6 June 1995 (Makwanyane) at para 67: “[W]hat is clear from the decisions of the Human Rights Committee of the United Nations is that the death penalty is regarded by it as cruel and inhuman punishment within the ordinary meaning of those words, and that it was because of the specific provisions of the International Covenant authorising the imposition of capital punishment by member States in certain circumstances, that the words had to be given a narrow meaning”.

26 Kigula, above at note 2 at 15.

27 Id at 26.

28 Id at 33.

29 Id at 20, 27 and 33–34.

30 Id at 16.

31 Id at 20, 27 and 33–34.

32 Schabas, WA “International law and the death penalty: Reflecting or promoting change?” in Hodgkinson, P and Schabas, WA (eds) Capital Punishment: Strategies for Abolition (2004, Cambridge University Press) 36 at 39–40Google Scholar.

33 Makwanyane, above at note 25 at para 26. See also White J in Furman v Georgia US Supreme Court 408 US 238, 29 June 1972 (Furman) at para 150: “The imposition and execution of the death penalty are obviously cruel in the dictionary sense. But the penalty has not been considered cruel and unusual punishment in the constitutional sense”. See also Ng, above at note 23 at para 16.2: “The Committee is aware that, by definition, every execution of a sentence of death may be considered to constitute cruel and inhuman treatment within the meaning of article 7 of the Covenant.”

34 “Report of the special rapporteur on torture and other cruel, inhuman or degrading treatment of punishment”: A/HRC/10/44 Human Rights Council 7th session (14 January 2009).

35 Id at paras 46–47.

36 Id at para 47.

37 Id at para 35.

38 See, for example, Tyrer v UK European Court of Human Rights application no 5856/72, 25 April 1978 (Tyrer) at para 31; Osborne v Jamaica Human Rights Committee, comm no 759/1997, 15 March 2000, at paras 3.3 and 10; and Winston Caesar v Trinidad and Tobago Inter-American Court of Human Rights, series C no 123, 11 March 2005.

39 “Report of the special rapporteur”, above at note 34 at para 41; Tyrer, id at para 33: “Although the applicant did not suffer any severe or long-lasting physical effects, his punishment - whereby he was treated as an object in the power of the authorities - constituted an assault on precisely that which it is [sic] one of the main purposes of Article 3 (art 3) to protect, namely a person's dignity and physical integrity.”

40 “Report of the special rapporteur”, id at para 32.

41 Gregg v Georgia US Supreme Court, 428 US 53, 2 July 1976, Brennan J dissenting at para 186, citing Furman, above at note 33 at para 85.

42 Kindler v Canada (Minister of Justice) Supreme Court of Canada [1991] 2 SCR 779, 26 September 1991, Cory J dissenting (Lamer CJC concurring) at 241 and Sopinka J dissenting (Lamer CJC concurring) at 220, cited in Makwanyane, above at note 25 at para 60.

43 ECHR application no 14038/88, 7 July 1989 at para 103. See also Öcalan v Turkey ECHR application no 46221/99, 12 May 2005 at para 163.

44 ECHR application no 61498/08, 2 March 2010 (Al Saadoon) at para 120.

45 Ibid. See also W Schabas “European Court of Human Rights death penalty decision raises difficult issues” (6 April 2010) PhD Studies in Human Rights Blog, noting that the ECHR went on to make the “perplexing” finding that “[t]he inhuman treatment is not the imposition of the death penalty itself, but rather the ‘psychological suffering’ or ‘mental suffering’ inflicted upon the applicants by their exposure to capital punishment”, available at: <http://humanrightsdoctorate.blogspot.com/2010/04/european-court-of-human-rights-death.html> (last accessed 7 June 2011).

46 Ugandan Penal Code, sec 189.

47 Id, sec 286 (2).

48 Id, sec 23.

49 Anti-Terrorism Act 2002, sec 7.1a.

50 International Federation of Human Rights “International fact-finding mission - Uganda: Challenging the death penalty” (report no 425/2, October 2005) (FIDH report) at 19.

51 “Civil and political rights, including the questions of disappearances and summary executions” (report of the UN special rapporteur on extrajudicial, summary or arbitrary executions, UN Commission on Human Rights, 61st Session, E/CN.4/2005/7, 22 December 2004) at para 63.

52 Res 2005/59, UN Commission on Human Rights, 20 April 2005, clause 7(f).

53 See, for example: Eversley Thompson v St-Vincent and the Grenadines Human Rights Committee, comm no 806/1998, 18 October 2000, at para 8.2: “The Committee considers that such a system of mandatory capital punishment would deprive the author of the most fundamental of rights, the right to life, without considering whether this exceptional form of punishment is appropriate in the circumstances of his or her case”; Edwards and Others v The Bahamas Inter-American Commission on Human Rights, report no 48/01, 4 April 2001, at para 138: “imposing a mandatory penalty of death … prohibits a reasoned consideration of each individual case to determine the propriety of the punishment in the circumstances, despite the fact that [crimes] can be committed under widely-differing circumstances. By its nature, then, this process eliminates any reasoned basis, for sentencing a particular individual to death and fails to allow for a rational and proportionate connection between individual offenders, their offenses, and the punishment imposed on them”. See also the jurisprudence of the Privy Council, which has held on several occasions that the mandatory death penalty is incompatible with fundamental human rights in appeals from several jurisdictions: Reyes v The Queen Privy Council on appeal from Belize [2002] 2 AC 235, at para 43: “to deny the offender the opportunity, before sentence has been passed, to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate is to treat him as no human being should be treated and thus to deny his basic humanity”; Bowe and Davis v The Queen Privy Council on appeal from the Bahamas [2006] 1 WLR 1623; Watson v The Queen Privy Council on appeal from Jamaica [2005] 1 AC 472; Matthew v The State Privy Council on appeal from Trinidad and Tobago [2005] 1 AC 433; Boyce and Joseph v The Queen Privy Council on appeal from Barbados [2005] 1 AC 400; Fox v R Privy Council on appeal from St Christopher and Nevis [2002] 2 AC 284; R v Hughes Privy Council on appeal from St Lucia [2002] 2 AC 259; and Lubuto v Zambia Human Rights Committee, comm no 390/1990, 31 October 1995, at para 7.2. See also WA Schabas The Abolition of the Death Penalty in International Law (2002, Cambridge University Press) at 111, noting that, since art 6(4) of the ICCPR requires that all death sentences be subject to commutation or reprieve, “it appears that the spirit of the Covenant opposes mandatory death sentences”.

54 Kigula, above at note 2 at 41–43.

55 Id at 41.

56 Id at 44.

57 Ibid.

58 Id at 45.

59 Ibid.

60 Id at 64.

61 Id at 63. Pursuant to sec 86(3) of the Prisons Act, life imprisonment is deemed to be 20 years. This was confirmed by the solicitor general in a supplementary interpretation of the Kigula judgment, issued in response to a request by the commissioner general dated 12 March 2009: see letter from the solicitor general (11 May 2009) at 4.

62 The Constitution, art 21(1) (emphasis added).

63 The Ugandan criminal justice system suffers from severe trial delays and a large backlog of cases; see, for example, Foundation for Human Rights Initiative The Human Rights Status Report 2007 at 27, available at: <http://www.fhri.or.ug/Uganda%20-%202007%20Human%20Rights%20Status%20Report%20.pdf> (last accessed 1 June 2011). To provide one illustration, in February 2006 it was reported that 4,700 capital suspects were awaiting trial on committal. At least 375 suspects were reported to have spent more than four years in prison. In this regard, see “4,700 capital suspects detained without trial” (5 February 2006) The New Vision.

64 Herrera v Collins US Supreme Court [1993] 506 US 390, at 415, cited with approval in Kigula, above at note 2 at 52.

65 Kigula, id at 45.

66 Ibid.

67 Ibid.

68 Ibid.

69 Ibid.

70 Id at 49–50.

71 Id at 50.

72 Id at 53.

73 Id at 53–54.

74 Id at 55.

75 Id at 56.

76 Id at 55.

77 Id at 57.

78 See Schabas “International law and the death penalty”, above at note 32 at 56–57.

79 Soering, above at note 43 at paras 106 and 111.

80 AHRLR 248 (ZwSC 1993) at para 94.

81 [1994] 2 AC 1 at 35.

82 Barrett and Sutcliffe v Jamaica (nos 279/1988 and 271/1988) UN doc A/47/40 at para 8.4. However, see the individual opinion of Christine Chanet in Johnson, below at note 83, who submitted that “[a] very long period on death row, even if partially due to the failure of the condemned prisoner to exercise a remedy, cannot exonerate the State party from its obligations under article 7 of the Covenant”.

83 Errol Johnson v Jamaica (no 588/1994) UN doc CCPR/C/56/D/588/1994 (Johnson) at para 8.3.

84 Id at para 8.4. However, see the individual opinion of Francisco José Aguilar Urbina, who criticized both the committee's “basic assumption that awaiting execution is preferable to execution itself” and “the position that … to rule that the excessive length of time which Errol Johnson spent on death row constitutes a violation of the Convention would be to convey a ‘message’ to States parties that they should execute those condemned to death expeditiously” as “a subjective opinion of the majority”, which “represents the feelings of the Committee members rather than a legal analysis”. See also the individual opinion of Christine Chanet, who held that the committee's conclusion that the setting of a time-limit would provoke hasty execution “is a subjective analysis in that the Committee is anticipating a supposed reaction by the State”. Despite such criticism, the Human Rights Committee has stuck to its position ever since this decision, on which see Schabas “International law and the death penalty”, above at note 32 at note 375 for a comprehensive list of the jurisprudence of the Human Rights Committee.

85 Kigula, above at note 2 at 48–49.

86 Id at 50.

87 Id at 55–56.

88 Johnson, above at note 83, individual opinion of Christine Chanet.

89 Kigula, above at note 2 at 48–49.

90 Pratt, above at note 81 at 33.

91 Kigula, above at note 2 at 56.

92 Godfrey Mugaanyi, affidavit sworn 28 August 2003, Kampala, cited in FIDH report, above at note 50 at 39.

93 Kigula, above at note 2 at 58.

94 Id at 60.

95 Res 1984/50, Economic and Social Council, 25 May 1984, safeguard no 9, cited in Kigula, ibid. See also: general comment no 20, Human Rights Committee, 1992, at para 6: “when the death penalty is applied by a State party for the most serious crimes, it must not only be limited in accordance with article 6 but it must be carried out in such a way as to cause the least possible physical and mental suffering”. See also res 2004/67, Commission on Human Rights, 21 April 2004 at para 4(i): “[u]rges all States that still maintain the death penalty … to ensure that, where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering and shall not be carried out in public or in any other degrading manner, and to ensure that any application of particularly cruel or inhuman means of execution, such as stoning, is stopped immediately” (emphasis original).

96 Kigula, id at 61.

97 Ibid.

98 Ibid.

99 Ibid.

100 Id at 62 (emphasis added).

101 Id at 62–63.

102 Ng, above at note 23 at para 16.2.

103 Id at para 16.3.

104 Id at para 18: individual opinion of Kurt Herndl (dissenting). See also individual opinion of Christine Chanet (dissenting), noting that “the Committee engages in questionable discussion when … it assesses the suffering caused by cyanide gas and takes into consideration the duration of the agony, which it deems unacceptable when it lasts over 10 minutes. Should it be concluded, conversely, that the Committee would find no violation of article 7 if the agony lasted nine minutes?”: Johnson, above at note 83.

105 Kigula, above at note 2 at 63.